The Constitutional Immorality of Abrogating India’s Article 370

Beyond Jammu and Kashmir’s bifurcation are critical issues related to the fate of democratic institutions, the nature of India’s progress and constitutional morality.

The decades-old Hindu nationalist dream of confining Article 370 of the Indian Constitution to the dustbin of history is on its way to becoming a reality. Historians can debate the circumstances in which the princely state of Jammu and Kashmir became a part of the union of India and whether awarding special status to the state through Article 370 was appropriate. However, judging by the euphoria and muted dissent with which the decision to abrogate it was greeted, the prevailing public opinion is that Article 370 was the original sin of the birth of India and should be scrapped.

Ever since Jammu and Kashmir’s accession to India in 1947, only a handful of political families have ruled the state as their fiefdom, and they have very little to show for it in terms of peace or prosperity. Cross-border terrorism has ruined a couple of generations of Kashmiri youth. Scores of Kashmiri Hindus have been driven out of their homes and had their properties destroyed.

The central government has thrown the kitchen sink — from near-total liberty to separatists and freedom fighters, multiple rounds of peace talks with all stakeholders, pouring millions of rupees to build infrastructure, to ruling with an iron fist — at the geopolitical problem in the region, and it has failed to achieve durable peace and usher in an era of sustainable development.

Army personnel fighting on the ground privately admit that terrorism and ancillary businesses in Jammu and Kashmir have become more of a thriving cottage industry than an ideological war. It is natural for generations of Indians born after independence, far removed from the brinkmanship that went into making Jammu and Kashmir part of India, to believe that some drastic steps are required to ensure that it does not become an unending conflict like with the Israelis and Palestinians.

To achieve lasting peace, perhaps dividing the state of Jammu and Kashmir into two union territories administered by the central government will, in due course, prove to be a step in the right direction. While constitutional scholars are debating the legalities of the decisions, the manner in which they were taken is dangerous for the future of Indian democracy. It brings up issues related to the fate of Indian democratic institutions, the nature of progress India is choosing and constitutional morality.

Independence of Democratic Institutions

When Narendra Modi was elected as prime minister of India in 2014, albeit with a weaker majority in the Lok Sabha, the lower house of Parliament, it was with the promise of steering India away from the Congress party-led socialist economics, heavy-handed decision-making and social policies skewed toward minority appeasement. Voters were expecting the nationalist Bharatiya Janata Party (BJP) government to respect the independence of various institutions, uphold the primacy of the constitution and perform its duties without fear of favor.


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